Resolving Landlord Tenant Disputes
Thomas W. Hartmann
[email protected]; 908 769 6888
Landlords cannot evict residential tenants without going through a precise legal process set forth in the Anti-Eviction Act. But, if landlords follow this process, the courts act swiftly and clearly. If there is a trial, which usually happens very rapidly, the case is dealt with in one day with limited rights of delay.
Reasons for Eviction and Defenses. New Jersey's Anti-Eviction Act protects both landlords and tenants by laying out the reasons for eviction, defenses, and timing of actions. The reasons for eviction include, among others: failure to pay rent; disorderly conduct; willful or negligent damage to the premises; violation of rules or regulations; breach of a lease covenant; refusal to pay a lawful rent increase; habitual late payment of rent; and conviction of some crimes.
A tenant is not powerless in the process, however. All residential leases include an implied warranty of habitability or, put differently, livability. Among other things, this warranty may allow a tenant to repair damaged premises on matters related to basic elements of livability such as heating, cooling, sewerage and plumbing and deduct the costs from the rent.
Generally, to rely on this remedy, the tenant must give notice to the landlord of the issue. If the landlord fails to act, the tenant can generally fix the problem and deduct the repair bill from the rent. This will not be treated as a failure to pay rent or a late payment.
On the other hand, if the landlord sues for non-payment of rent and the tenant has not made the repairs, the court may require the tenant to pay into the court all the rent that is due until it decides the habitability issue. If the tenant cannot pay the rent due into the court that day, the tenant will likely lose the habitability defense. The tenant may also be required to provide the landlord with a list of the items which need repair. If the repairs are made satisfactorily, the deposited money could be released to the landlord or the tenant could request a hearing to try to obtain a reduction of rent for the period of time they claim the unit was uninhabitable.
Other tenant defenses include: (1) retaliation or reprisal, which means a landlord cannot institute action for possession because a tenant has exercised rights under the lease or any federal or state law or because the tenant made a good faith claim to government authorities alleging a violation of safety or health laws; (2) waiver, which means that if the landlord knows the tenant has pets in violation of the lease and the landlord allows it or if rent is due on the 5th day of the month but the landlord always accepts it on the 15th day, the landlord may waive the right to claim the tenant has violated the lease; (3) unconscionability, which might include imposing conditions on tenants that are not included in the lease; or (4) bankruptcy, which can stay proceedings by the landlord unless approved by the Bankruptcy Court.
The Process. The eviction process moves rapidly. For example, if a tenant fails to pay rent – the most common cause of eviction – the landlord need not send the tenant advanced notice before filing a complaint for eviction with the court, unless the tenant is in federally subsidized housing. The landlord need only give the tenant 10 days of notice for a court appearance after the complaint is filed and served.
If there is a court proceeding, the judge will read a lengthy series of instructions for all the tenants, landlords and witnesses. The judge will announce every case. If one party is not present, the judge can dismiss the case or declare a judgment for the suing party, who is usually the landlord.
If both parties are present, most courts will require the parties to attempt to resolve the matter informally or go through mediation. Delays are granted only in exceptional circumstances. If the parties were not able to resolve their dispute before arrival in the courtroom, the majesty and severity of the court often introduces a new reality. That reality encourages settlement between the parties. Between 95% and 98% of all cases settle.
If the parties cannot end their differences, mediators are available to help. Mediators can be extremely effective, as they understand the process, the judges, and the local court requirements. They can let the parties know their strengths and weaknesses and encourage to parties to compromise – or risk a trial and court ruling that may go against them.
The Hartmann Law Firm LLC can assist in these compliance matters to insure your business and your assets are protected. Beyond this, we can help guide businesses through issues ahead of litigation or aggressively advocate in litigation and business disputes should the need arise.